Fair Use Doctrine

Anthony Prince
11-26-13
Public Policy Analysis
Fall 2013

Patent and Copyright

Clause

U.S. Constitution, Article I, Section 8,

Clause 8
The Congress shall have Power To promote the
Progress of Science and useful Arts, by securing
for limited Tmes to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries.

Note: Science would have meant knowledge

in the broadest sense (including what we would
now consider science and also literature).
"Useful Arts" would consist of the work of
artisans, skilled labor, and manufacturing.
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Fair Use (Excerpt)

The Copyright Act (Title 17 of the U.S. Code): Fair Use
107. Limitations on exclusive rights: Fair use
The fair use of a copyrighted work for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is
not an infringement of copyright. In determining whether the
use made of a work in any particular case is a fair use the
factors to be considered shall include

(1) the purpose and character of the use, including

whether such use is of a commercial nature or is for

nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for
or value of the copyrighted work.
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Fair Use Is
Examples of Fair Use:
Commentary and criticism (Where excerpts are

used: book review, music review, summarizing an

article in a news report, copying from a news
report for teaching)
Parody (Note: satire is treated differently)
Various types of artistic remixes blur the lines
The rationale is that the public benefits from

these works (they add to the current work,

create new works) and do not need permission
from copyright owner.
Supports the progress of science and useful arts
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What Fair Use Does

Good: Fair use serves as a traditional balance
of rights and limitations of copyright and
preserves the growth of a vibrant public
domain (Burk & Cohen, 2001, p.42).
Not good: The difficulty in claiming fair use is
that there is no way to guarantee that your
use will qualify as fair Stim (2010).

Fair Use Is Not

Private, non-transformative, personal use copying
Is it fair use to record a television broadcast? Yes.

(1982 Supreme Court case)

Is it fair use to make a copy of an original work and
disseminate it? Likely no (if non-transformative, even
with a disclaimer or citation. Consider factors 3 & 4.)
This is likely the most widespread usage of

copyrighted material, whether fair use or

infringement. (Pinterest, file-sharing, personal
MP3 copies, etc.)

The purpose of Fair Use (and this policy

paper/presentation) is not to justify this usage.

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Positive Side of Flexibility

Fair Use, being technology-neutral, has
proven highly adaptable and flexible.
Fair Use allows for thumbnail images in

Internet search results (court decision),

webpage caching (court decision), and digital
plagiarism detection software.
Complementary markets have developed out
of fair use and fair use court decisions (VCRs
and later DVRs, cassette recording to iPodsall of these devices allow for infringement, but
have become highly profitable and popular
markets.)
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Negative Side of
Flexibility

The flexibility and lack of clarity adversely affects

the publics ability to create and distribute works.

This invites aggressive enforcement by rights
holders against fair use:
The public, even legal scholars and lawyers,

struggle to determine what is fair and what is

infringement
This allows cover for rights holders to charge
licensing fees even for fair use, threaten legal
action, and issue cease and desist/take down
notices. Users feel compelled to follow, or risk
stifling legal fees.

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Policy Problem: Reasons

for Change

The flexibility of the Fair Use Doctrine is a

double-edged sword.
It allows for Fair Use to adapt to new
technologies and for complementary
markets to develop. It allows the public to
use copyrighted works without seeking
permission (or paying licensing fees).

However, interpretation of the doctrine can

differ greatly, to the point that the public
may be reluctant to exercise their right to
fair use.
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Policy Problem: Reasons

for Change

Lack of consistent precedent

Upholding the Constitution (Progress of Science

and the Useful Arts) both for copyright owners

and "users"
Public is less likely to create/distribute new
works, technologies, etc. because of fear of
infringement/litigation, fees/statutory damages.
Lack of consistency hurts both rights holders and
fair users. But, its aggressive rights holders that
benefit (licensing fees; stifling penalties for
infringement)
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Policy Options to Consider

(abbreviated list)
Let present trends continue undisturbed.
Establish a Fair Use Board (Carroll, 2007).
Strengthen and rework the law to firmly

establish and protect the public domain

(Burk & Cohen, 2001).
Better establishment of a copyright
misuse defense/doctrine (Patterson,
2000; Carr, 2010; Mazzone, 2011).
Establish a Fair Use Rule; eliminating the
flexibility of Fair Use as a standard and
removing uncertainty and ambiguity
(Carroll, 2007).

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Constraints
Political feasibility: There are many political

obstacles in making changes to the federal law

dealing with fair use. There are party politics
differences in Congress as well as special interest
and consumer groups to consider.
Organizational feasibility: There are many
organizations involved, including groups
representing copyright holders, large organizations
holding copyrights of material, universities, research
libraries, and the Department of Commerce.
Many of the alternatives presented rely on Congress
to change the law or establish a new administrative
body.
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Evaluation
Market accountability would be addressed in how the market, as a

whole, reacts to the changes in fair use (if any). How the market
responds might include new legal challenges and issue discovered
(unintended consequences).
Expert analysis deals with various experts and the criteria they use
to analyze the success of a policy. Experts in this debate may include
a variety of consumer and user groups, including legal scholars,
judges, copyright owners and industry groups.
Expense and Effectiveness: This would be one of the more
complicated measures in this policy debate. The Fair Use Doctrine itself
is rooted in the idea that there should be some tradeoff between what
is owned and how that knowledge contained in the copyrighted work
would benefit society. We would need to look at the programs costs
and how the market would be affected, how the population would be
affected, and how complementary markets would be affected.
Long-term Consequences: This is certainly the most important
measure for Fair Use: does it, or any changes made, impact the core
problem (in this case, the flexibility of Fair Use creates unpredictable
outcomes) and has society benefited from the changes. Implicit in this
is also the question of who in society has benefited, how have they
benefited, and at whose expense?
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Recommendations
Clarify the rights/law of the public in terms

of Fair Use Clarify

In doing so, this will decrease the threat of
litigation and statutory damages; alleviate
fears of fair users and strengthen the
doctrine
Removing such threats and raising public
awareness of its affirmative and definitive
rights will help spur creation and
dissemination of new works (original and
remixed)
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